SB 1084, as introduced, Hancock. Sentencing.
Existing law authorizes a prisoner who was under 18 years of age at the time of committing an offense for which the prisoner was sentenced to life without the possibility of parole to submit a petition for recall and resentencing after he or she has served at least 15 years of his or her sentence. Existing law prohibits a prisoner who tortured his or her victim or whose victim was a public safety official, as defined, from filing a petition for recall and resentencing. Existing law establishes certain criteria, at least one of which shall be asserted in the petition, to be considered when a court decides whether to conduct a hearing on the petition for recall and resentencing and additional criteria to be considered by the court when deciding whether to grant the petition. Existing law requires the court to hold a hearing if the court finds that the statements in the defendant’s petition are true, as specified, and grants the court discretion to recall and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.
This bill would instead authorize those prisoners to submit the petition for recall and resentencing after he or she has been committed to the custody of the Department of Corrections and Rehabilitation for 15 years. The bill would also require a court, if it finds by a preponderance of the evidence that one or more of the qualifying criteria is true, to recall the sentence previously ordered and hold a hearing to resentence the defendant. The bill would make other conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1170 of the Penal Code, as amended by
2Section 1 of Chapter 378 of the Statutes of 2015, is amended to
3read:
(a) (1) The Legislature finds and declares that the
5purpose of imprisonment for crime is punishment. This purpose
6is best served by terms proportionate to the seriousness of the
7offense with provision for uniformity in the sentences of offenders
8committing the same offense under similar circumstances. The
9Legislature further finds and declares that the elimination of
10disparity and the provision of uniformity of sentences can best be
11achieved by determinate sentences fixed by statute in proportion
12to the seriousness of the offense as determined by the Legislature
13to be imposed by the court with specified discretion.
14(2) Notwithstanding paragraph (1), the Legislature further finds
15and declares that programs should be available for inmates,
16
including, but not limited to, educational programs, that are
17designed to prepare nonviolent felony offenders for successful
18reentry into the community. The Legislature encourages the
19development of policies and programs designed to educate and
20rehabilitate nonviolent felony offenders. In implementing this
21section, the Department of Corrections and Rehabilitation is
22encouraged to give priority enrollment in programs to promote
23successful return to the community to an inmate with a short
24remaining term of commitment and a release date that would allow
25him or her adequate time to complete the program.
26(3) In any case in which the punishment prescribed by statute
27for a person convicted of a public offense is a term of imprisonment
28in the state prison or a term pursuant to subdivision (h) of any
29specification of three time periods, the court shall sentence the
30defendant to one of the terms of imprisonment specified unless
31the convicted person is
given any other disposition provided by
32law, including a fine, jail, probation, or the suspension of
33imposition or execution of sentence or is sentenced pursuant to
P3 1subdivision (b) of Section 1168 because he or she had committed
2his or her crime prior to July 1, 1977. In sentencing the convicted
3person, the court shall apply the sentencing rules of the Judicial
4Council. The court, unless it determines that there are
5circumstances in mitigation of the punishment prescribed, shall
6also impose any other term that it is required by law to impose as
7an additional term. Nothing in this article shall affect any provision
8of law that imposes the death penalty, that authorizes or restricts
9the granting of probation or suspending the execution or imposition
10of sentence, or expressly provides for imprisonment in the state
11prison for life, except as provided in paragraph (2) of subdivision
12(d). In any case in which the amount of preimprisonment credit
13under Section 2900.5 or any other law is equal to or exceeds any
14
sentence imposed pursuant to this chapter, except for the remaining
15portion of mandatory supervision pursuant to subparagraph (B) of
16paragraph (5) of subdivision (h), the entire sentence shall be
17deemed to have been served, except for the remaining period of
18mandatory supervision, and the defendant shall not be actually
19delivered to the custody of the secretary or to the custody of the
20county correctional administrator. The court shall advise the
21defendant that he or she shall serve an applicable period of parole,
22postrelease community supervision, or mandatory supervision,
23and order the defendant to report to the parole or probation office
24closest to the defendant’s last legal residence, unless the in-custody
25credits equal the total sentence, including both confinement time
26and the period of parole, postrelease community supervision, or
27mandatory supervision. The sentence shall be deemed a separate
28prior prison term or a sentence of imprisonment in a county jail
29under subdivision (h) for purposes of Section
667.5, and a copy
30of the judgment and other necessary documentation shall be
31forwarded to the secretary.
32(b) When a judgment of imprisonment is to be imposed and the
33statute specifies three possible terms, the choice of the appropriate
34term shall rest within the sound discretion of the court. At least
35four days prior to the time set for imposition of judgment, either
36party or the victim, or the family of the victim if the victim is
37deceased, may submit a statement in aggravation or mitigation. In
38determining the appropriate term, the court may consider the record
39in the case, the probation officer’s report, other reports, including
40reports received pursuant to Section 1203.03, and statements in
P4 1aggravation or mitigation submitted by the prosecution, the
2defendant, or the victim, or the family of the victim if the victim
3is deceased, and any further evidence introduced at the sentencing
4hearing. The court shall select the term which, in the
court’s
5discretion, best serves the interests of justice. The court shall set
6forth on the record the reasons for imposing the term selected and
7the court may not impose an upper term by using the fact of any
8enhancement upon which sentence is imposed under any provision
9of law. A term of imprisonment shall not be specified if imposition
10of sentence is suspended.
11(c) The court shall state the reasons for its sentence choice on
12the record at the time of sentencing. The court shall also inform
13the defendant that as part of the sentence after expiration of the
14term he or she may be on parole for a period as provided in Section
153000 or 3000.08 or postrelease community supervision for a period
16as provided in Section 3451.
17(d) (1) When a defendant subject to this section or subdivision
18(b) of Section 1168 has been sentenced to be imprisoned in the
19state prison or
county jail pursuant to subdivision (h) and has been
20committed to the custody of the secretary or the county correctional
21administrator, the court may, within 120 days of the date of
22commitment on its own motion, or at any time upon the
23recommendation of the secretary or the Board of Parole Hearings
24in the case of state prison inmates, or the county correctional
25administrator in the case of county jail inmates, recall the sentence
26and commitment previously ordered and resentence the defendant
27in the same manner as if he or she had not previously been
28sentenced, provided the new sentence, if any, is no greater than
29the initial sentence. The court resentencing under this subdivision
30shall apply the sentencing rules of the Judicial Council so as to
31eliminate disparity of sentences and to promote uniformity of
32sentencing. Credit shall be given for time served.
33(2) (A) (i) When a defendant who was under 18
years of age
34at the time of the commission of the offense for which the
35defendant was sentenced to imprisonment for life without the
36possibility of parole hasbegin delete served at least 15 years of that sentence,end deletebegin insert end insert
37begin insertbeen committed to theend insertbegin insert custody of the department for at least 15
38years,end insert the defendant may submit to the sentencing court a petition
39for recall and resentencing.
P5 1(ii) Notwithstanding clause (i), this paragraph shall not apply
2to defendants sentenced to life without parole for an offense where
3begin insert it was pled and proved thatend insert the defendant tortured, as described
4in Section 206, his or her victim or the victim was a public safety
5official, including any law enforcement personnel mentioned in
6Chapter 4.5 (commencing with Section 830) of Title 3, or any
7firefighter as described in Section 245.1, as well as any
other officer
8in any segment of law enforcement who is employed by the federal
9government, the state, or any of its political subdivisions.
10(B) The defendant shall file the original petition with the
11sentencing court. A copy of the petition shall be served on the
12agency that prosecuted the case. The petition shall include the
13defendant’s statement that he or she was under 18 years of age at
14the time of the crime and was sentenced to life in prison without
15the possibility of parole, the defendant’s statement describing his
16or her remorse and work towards rehabilitation, and the defendant’s
17statement that one of the following is true:
18(i) The defendant was convicted pursuant to felony murder or
19aiding and abetting murder provisions of law.
20(ii) The defendant does not have juvenile felony adjudications
21for assault or
other felony crimes with a significant potential for
22personal harm to victims prior to the offense for which the sentence
23is being considered for recall.
24(iii) The defendant committed the offense with at least one adult
25codefendant.
26(iv) The defendant has performed acts that tend to indicate
27rehabilitation or the potential for rehabilitation, including, but not
28limited to, availing himself or herself of rehabilitative, educational,
29or vocational programs, if those programs have been available at
30his or her classification level and facility, using self-study for
31self-improvement, or showing evidence of remorse.
32(C) If any of the information required in subparagraph (B) is
33missing from the petition, or if proof of service on the prosecuting
34agency is not provided, the court shall return the petition to the
35defendant
and advise the defendant that the matter cannot be
36considered without the missing information.
37(D) A reply to the petition, if any, shall be filed with the court
38within 60 days of the date on which the prosecuting agency was
39served with the petition, unless a continuance is granted for good
40cause.
P6 1(E) If the court finds by a preponderance of the evidence that
2begin delete the statements in the petition are true,end deletebegin insert one or more of the statements
3specified in clauses (i) to (iv), inclusive, of subparagraph (B) is
4true,end insert the court shallbegin delete hold a hearing to consider whether toend delete recall
5the sentence and commitment previously ordered
andbegin insert hold a
6hearingend insert to resentence the defendant in the same manner as if the
7defendant had not previously been sentenced, provided that the
8new sentence, if any, is not greater than the initial sentence.
9Victims, or victim family members if the victim is deceased, shall
10retain the rights to participate in the hearing.
11(F) The factors that the court may consider when determining
12whether tobegin delete recall andend delete resentencebegin insert the defendant to a term of
13imprisonment with the possibility of paroleend insert include, but are not
14limited to, the following:
15(i) The defendant was convicted pursuant to felony murder or
16
aiding and abetting murder provisions of law.
17(ii) The defendant does not have juvenile felony adjudications
18for assault or other felony crimes with a significant potential for
19personal harm to victims prior to the offense for which the sentence
20is being considered for recall.
21(iii) The defendant committed the offense with at least one adult
22codefendant.
23(iv) Prior to the offense for which the sentence is being
24considered for recall, the defendant had insufficient adult support
25or supervision and had suffered from psychological or physical
26trauma, or significant stress.
27(v) The defendant suffers from cognitive limitations due to
28mental illness, developmental disabilities, or other factors that did
29not constitute a defense, but influenced the defendant’s
30
involvement in the offense.
31(vi) The defendant has performed acts that tend to indicate
32rehabilitation or the potential for rehabilitation, including, but not
33limited to, availing himself or herself of rehabilitative, educational,
34or vocational programs, if those programs have been available at
35his or her classification level and facility, using self-study for
36self-improvement, or showing evidence of remorse.
37(vii) The defendant has maintained family ties or connections
38with others through letter writing, calls, or visits, or has eliminated
39contact with individuals outside of prison who are currently
40involved with crime.
P7 1(viii) The defendant has had no disciplinary actions for violent
2activities in the last five years in which the defendant was
3determined to be the aggressor.
4(G) The court shall have the discretionbegin delete to recall the sentence to resentence the
5and commitment previously ordered andend delete
6defendant in the same manner as if the defendant had not
7previously been sentenced, provided that the new sentence, if any,
8is not greater than the initial sentence. The discretion of the court
9shall be exercised in consideration of the criteria in subparagraph
10begin delete (B).end deletebegin insert (F).end insert Victims, or victim family members if the victim is
11deceased, shall be notified of the resentencing hearing and shall
12retain their rights to participate in the hearing.
13(H) If the sentence is notbegin delete recalled,end deletebegin insert
recalled or the defendant is
14resentenced to imprisonment for life without the possibility of
15parole,end insert the defendant may submit another petition for recall and
16resentencing to the sentencing court when the defendant has been
17committed to the custody of the department for at least 20 years.
18If recall and resentencing is not granted under that petition, the
19defendant may file another petition after havingbegin delete servedend deletebegin insert been
20committed to the custody of the department forend insert 24 years. The final
21petition may be submitted, and the response to that petition shall
22be determined, during the 25th year of the defendant’sbegin delete sentence.end delete
23begin insert
commitment to the department.end insert
24(I) In addition to the criteria in subparagraph (F), the court may
25consider any other criteria that the court deems relevant to its
26decision, so long as the court identifies them on the record,
27provides a statement of reasons for adopting them, and states why
28the defendant does or does not satisfy the criteria.
29(J) This subdivision shall have retroactive application.
30(e) (1) Notwithstanding any other law and consistent with
31paragraph (1) of subdivision (a), if the secretary or the Board of
32Parole Hearings or both determine that a prisoner satisfies the
33criteria set forth in paragraph (2), the secretary or the board may
34recommend to the court that the prisoner’s sentence be recalled.
35(2) The court shall have the discretion to resentence or recall if
36the court finds that the facts described in subparagraphs (A) and
37(B) or subparagraphs (B) and (C) exist:
38(A) The prisoner is terminally ill with an incurable condition
39caused by an illness or disease that would produce death within
P8 1six months, as determined by a physician employed by the
2department.
3(B) The conditions under which the prisoner would be released
4or receive treatment do not pose a threat to public safety.
5(C) The prisoner is permanently medically incapacitated with
6a medical condition that renders him or her permanently unable
7to perform activities of basic daily living, and results in the prisoner
8requiring 24-hour total care, including, but not limited to, coma,
9persistent
vegetative state, brain death, ventilator-dependency, loss
10of control of muscular or neurological function, and that
11incapacitation did not exist at the time of the original sentencing.
12The Board of Parole Hearings shall make findings pursuant to
13this subdivision before making a recommendation for resentence
14or recall to the court. This subdivision does not apply to a prisoner
15sentenced to death or a term of life without the possibility of parole.
16(3) Within 10 days of receipt of a positive recommendation by
17the secretary or the board, the court shall hold a hearing to consider
18whether the prisoner’s sentence should be recalled.
19(4) Any physician employed by the department who determines
20that a prisoner has six months or less to live shall notify the chief
21medical officer of the prognosis. If the chief medical officer
22concurs with the
prognosis, he or she shall notify the warden.
23Within 48 hours of receiving notification, the warden or the
24warden’s representative shall notify the prisoner of the recall and
25resentencing procedures, and shall arrange for the prisoner to
26designate a family member or other outside agent to be notified
27as to the prisoner’s medical condition and prognosis, and as to the
28recall and resentencing procedures. If the inmate is deemed
29mentally unfit, the warden or the warden’s representative shall
30contact the inmate’s emergency contact and provide the information
31described in paragraph (2).
32(5) The warden or the warden’s representative shall provide the
33prisoner and his or her family member, agent, or emergency
34contact, as described in paragraph (4), updated information
35throughout the recall and resentencing process with regard to the
36prisoner’s medical condition and the status of the prisoner’s recall
37and resentencing proceedings.
38(6) Notwithstanding any other provisions of this section, the
39prisoner or his or her family member or designee may
40independently request consideration for recall and resentencing
P9 1by contacting the chief medical officer at the prison or the
2secretary. Upon receipt of the request, the chief medical officer
3and the warden or the warden’s representative shall follow the
4procedures described in paragraph (4). If the secretary determines
5that the prisoner satisfies the criteria set forth in paragraph (2), the
6secretary or board may recommend to the court that the prisoner’s
7sentence be recalled. The secretary shall submit a recommendation
8for release within 30 days in the case of inmates sentenced to
9determinate terms and, in the case of inmates sentenced to
10indeterminate terms, the secretary shall make a recommendation
11to the Board of Parole Hearings with respect to the inmates who
12have applied under this section. The board shall consider this
13
information and make an independent judgment pursuant to
14paragraph (2) and make findings related thereto before rejecting
15the request or making a recommendation to the court. This action
16shall be taken at the next lawfully noticed board meeting.
17(7) Any recommendation for recall submitted to the court by
18the secretary or the Board of Parole Hearings shall include one or
19more medical evaluations, a postrelease plan, and findings pursuant
20to paragraph (2).
21(8) If possible, the matter shall be heard before the same judge
22of the court who sentenced the prisoner.
23(9) If the court grants the recall and resentencing application,
24the prisoner shall be released by the department within 48 hours
25of receipt of the court’s order, unless a longer time period is agreed
26to by the inmate. At the time of release, the warden or the
warden’s
27representative shall ensure that the prisoner has each of the
28following in his or her possession: a discharge medical summary,
29full medical records, state identification, parole or postrelease
30community supervision medications, and all property belonging
31to the prisoner. After discharge, any additional records shall be
32sent to the prisoner’s forwarding address.
33(10) The secretary shall issue a directive to medical and
34correctional staff employed by the department that details the
35guidelines and procedures for initiating a recall and resentencing
36procedure. The directive shall clearly state that any prisoner who
37is given a prognosis of six months or less to live is eligible for
38recall and resentencing consideration, and that recall and
39resentencing procedures shall be initiated upon that prognosis.
P10 1(11) The provisions of this subdivision shall be available to an
2inmate who
is sentenced to a county jail pursuant to subdivision
3(h). For purposes of those inmates, “secretary” or “warden” shall
4mean the county correctional administrator and “chief medical
5officer” shall mean a physician designated by the county
6correctional administrator for this purpose.
7(f) Notwithstanding any other provision of this section, for
8purposes of paragraph (3) of subdivision (h), any allegation that
9a defendant is eligible for state prison due to a prior or current
10conviction, sentence enhancement, or because he or she is required
11to register as a sex offender shall not be subject to dismissal
12pursuant to Section 1385.
13(g) A sentence to state prison for a determinate term for which
14only one term is specified, is a sentence to state prison under this
15section.
16(h) (1) Except as provided in
paragraph (3), a felony punishable
17pursuant to this subdivision where the term is not specified in the
18underlying offense shall be punishable by a term of imprisonment
19in a county jail for 16 months, or two or three years.
20(2) Except as provided in paragraph (3), a felony punishable
21pursuant to this subdivision shall be punishable by imprisonment
22in a county jail for the term described in the underlying offense.
23(3) Notwithstanding paragraphs (1) and (2), where the defendant
24(A) has a prior or current felony conviction for a serious felony
25described in subdivision (c) of Section 1192.7 or a prior or current
26conviction for a violent felony described in subdivision (c) of
27Section 667.5, (B) has a prior felony conviction in another
28jurisdiction for an offense that has all the elements of a serious
29felony described in subdivision (c) of Section 1192.7 or a violent
30felony described in
subdivision (c) of Section 667.5, (C) is required
31to register as a sex offender pursuant to Chapter 5.5 (commencing
32with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
33and as part of the sentence an enhancement pursuant to Section
34186.11 is imposed, an executed sentence for a felony punishable
35pursuant to this subdivision shall be served in state prison.
36(4) Nothing in this subdivision shall be construed to prevent
37other dispositions authorized by law, including pretrial diversion,
38deferred entry of judgment, or an order granting probation pursuant
39to Section 1203.1.
P11 1(5) (A) Unless the court finds that, in the interests of justice, it
2is not appropriate in a particular case, the court, when imposing a
3sentence pursuant to paragraph (1) or (2), shall suspend execution
4of a concluding portion of the term for a period selected at the
5court’s
discretion.
6(B) The portion of a defendant’s sentenced term that is
7suspended pursuant to this paragraph shall be known as mandatory
8supervision, and, unless otherwise ordered by the court, shall
9commence upon release from physical custody or an alternative
10custody program, whichever is later. During the period of
11mandatory supervision, the defendant shall be supervised by the
12county probation officer in accordance with the terms, conditions,
13and procedures generally applicable to persons placed on probation,
14for the remaining unserved portion of the sentence imposed by the
15court. The period of supervision shall be mandatory, and may not
16be earlier terminated except by court order. Any proceeding to
17revoke or modify mandatory supervision under this subparagraph
18shall be conducted pursuant to either subdivisions (a) and (b) of
19Section 1203.2 or Section 1203.3. During the period when the
20defendant is under that supervision, unless in actual
custody related
21 to the sentence imposed by the court, the defendant shall be entitled
22to only actual time credit against the term of imprisonment imposed
23by the court. Any time period which is suspended because a person
24has absconded shall not be credited toward the period of
25supervision.
26(6) The sentencing changes made by the act that added this
27subdivision shall be applied prospectively to any person sentenced
28on or after October 1, 2011.
29(7) The sentencing changes made to paragraph (5) by the act
30that added this paragraph shall become effective and operative on
31January 1, 2015, and shall be applied prospectively to any person
32sentenced on or after January 1, 2015.
33(i) This section shall remain in effect only until January 1, 2017,
34and as of that date is repealed, unless a later enacted statute, that
35is enacted
before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
372 of Chapter 378 of the Statutes of 2015, is amended to read:
(a) (1) The Legislature finds and declares that the
39purpose of imprisonment for crime is punishment. This purpose
40is best served by terms proportionate to the seriousness of the
P12 1offense with provision for uniformity in the sentences of offenders
2committing the same offense under similar circumstances. The
3Legislature further finds and declares that the elimination of
4disparity and the provision of uniformity of sentences can best be
5achieved by determinate sentences fixed by statute in proportion
6to the seriousness of the offense as determined by the Legislature
7to be imposed by the court with specified discretion.
8(2) Notwithstanding paragraph (1), the Legislature further finds
9and declares that programs should be available for inmates,
10
including, but not limited to, educational programs, that are
11designed to prepare nonviolent felony offenders for successful
12reentry into the community. The Legislature encourages the
13development of policies and programs designed to educate and
14rehabilitate nonviolent felony offenders. In implementing this
15section, the Department of Corrections and Rehabilitation is
16encouraged to give priority enrollment in programs to promote
17successful return to the community to an inmate with a short
18remaining term of commitment and a release date that would allow
19him or her adequate time to complete the program.
20(3) In any case in which the punishment prescribed by statute
21for a person convicted of a public offense is a term of imprisonment
22in the state prison, or a term pursuant to subdivision (h), of any
23specification of three time periods, the court shall sentence the
24defendant to one of the terms of imprisonment specified unless
25the convicted person is
given any other disposition provided by
26law, including a fine, jail, probation, or the suspension of
27imposition or execution of sentence or is sentenced pursuant to
28subdivision (b) of Section 1168 because he or she had committed
29his or her crime prior to July 1, 1977. In sentencing the convicted
30person, the court shall apply the sentencing rules of the Judicial
31Council. The court, unless it determines that there are
32circumstances in mitigation of the punishment prescribed, shall
33also impose any other term that it is required by law to impose as
34an additional term. Nothing in this article shall affect any provision
35of law that imposes the death penalty, that authorizes or restricts
36the granting of probation or suspending the execution or imposition
37of sentence, or expressly provides for imprisonment in the state
38prison for life, except as provided in paragraph (2) of subdivision
39(d). In any case in which the amount of preimprisonment credit
40under Section 2900.5 or any other provision of law is equal to or
P13 1
exceeds any sentence imposed pursuant to this chapter, except for
2a remaining portion of mandatory supervision imposed pursuant
3to subparagraph (B) of paragraph (5) of subdivision (h), the entire
4sentence shall be deemed to have been served, except for the
5remaining period of mandatory supervision, and the defendant
6shall not be actually delivered to the custody of the secretary or
7the county correctional administrator. The court shall advise the
8defendant that he or she shall serve an applicable period of parole,
9 postrelease community supervision, or mandatory supervision and
10order the defendant to report to the parole or probation office
11closest to the defendant’s last legal residence, unless the in-custody
12credits equal the total sentence, including both confinement time
13and the period of parole, postrelease community supervision, or
14mandatory supervision. The sentence shall be deemed a separate
15prior prison term or a sentence of imprisonment in a county jail
16under subdivision (h) for purposes of Section
667.5, and a copy
17of the judgment and other necessary documentation shall be
18forwarded to the secretary.
19(b) When a judgment of imprisonment is to be imposed and the
20statute specifies three possible terms, the court shall order
21imposition of the middle term, unless there are circumstances in
22aggravation or mitigation of the crime. At least four days prior to
23the time set for imposition of judgment, either party or the victim,
24or the family of the victim if the victim is deceased, may submit
25a statement in aggravation or mitigation to dispute facts in the
26record or the probation officer’s report, or to present additional
27facts. In determining whether there are circumstances that justify
28imposition of the upper or lower term, the court may consider the
29record in the case, the probation officer’s report, other reports,
30including reports received pursuant to Section 1203.03, and
31statements in aggravation or mitigation submitted by the
32prosecution,
the defendant, or the victim, or the family of the victim
33if the victim is deceased, and any further evidence introduced at
34the sentencing hearing. The court shall set forth on the record the
35facts and reasons for imposing the upper or lower term. The court
36may not impose an upper term by using the fact of any
37enhancement upon which sentence is imposed under any provision
38of law. A term of imprisonment shall not be specified if imposition
39of sentence is suspended.
P14 1(c) The court shall state the reasons for its sentence choice on
2the record at the time of sentencing. The court shall also inform
3the defendant that as part of the sentence after expiration of the
4term he or she may be on parole for a period as provided in Section
53000 or 3000.08 or postrelease community supervision for a period
6as provided in Section 3451.
7(d) (1) When a defendant subject to this
section or subdivision
8(b) of Section 1168 has been sentenced to be imprisoned in the
9state prison or county jail pursuant to subdivision (h) and has been
10committed to the custody of the secretary or the county correctional
11administrator, the court may, within 120 days of the date of
12commitment on its own motion, or at any time upon the
13recommendation of the secretary or the Board of Parole Hearings
14in the case of state prison inmates, or the county correctional
15administrator in the case of county jail inmates, recall the sentence
16and commitment previously ordered and resentence the defendant
17in the same manner as if he or she had not previously been
18sentenced, provided the new sentence, if any, is no greater than
19the initial sentence. The court resentencing under this subdivision
20shall apply the sentencing rules of the Judicial Council so as to
21eliminate disparity of sentences and to promote uniformity of
22sentencing. Credit shall be given for time served.
23(2) (A) (i) When a defendant who was under 18 years of age
24at the time of the commission of the offense for which the
25defendant was sentenced to imprisonment for life without the
26possibility of parole hasbegin delete served at least 15 years of that sentence,end delete
27begin insert been committed to the custody of the department for at least 15
28years,end insert the defendant may submit to the sentencing court a petition
29for recall and resentencing.
30(ii) Notwithstanding clause (i), this paragraph shall not apply
31to defendants sentenced to life without parole for an offense where
32begin insert it was pled and proved thatend insert the defendant tortured, as
described
33in Section 206, his or her victim or the victim was a public safety
34official, including any law enforcement personnel mentioned in
35Chapter 4.5 (commencing with Section 830) of Title 3, or any
36firefighter as described in Section 245.1, as well as any other officer
37in any segment of law enforcement who is employed by the federal
38government, the state, or any of its political subdivisions.
39(B) The defendant shall file the original petition with the
40sentencing court. A copy of the petition shall be served on the
P15 1agency that prosecuted the case. The petition shall include the
2defendant’s statement that he or she was under 18 years of age at
3the time of the crime and was sentenced to life in prison without
4the possibility of parole, the defendant’s statement describing his
5or her remorse and work towards rehabilitation, and the defendant’s
6statement that one of the following is true:
7(i) The defendant was convicted pursuant to felony murder or
8aiding and abetting murder provisions of law.
9(ii) The defendant does not have juvenile felony adjudications
10for assault or other felony crimes with a significant potential for
11personal harm to victims prior to the offense for which the sentence
12is being considered for recall.
13(iii) The defendant committed the offense with at least one adult
14codefendant.
15(iv) The defendant has performed acts that tend to indicate
16rehabilitation or the potential for rehabilitation, including, but not
17limited to, availing himself or herself of rehabilitative, educational,
18or vocational programs, if those programs have been available at
19his or her classification level and facility, using self-study for
20
self-improvement, or showing evidence of remorse.
21(C) If any of the information required in subparagraph (B) is
22missing from the petition, or if proof of service on the prosecuting
23agency is not provided, the court shall return the petition to the
24defendant and advise the defendant that the matter cannot be
25considered without the missing information.
26(D) A reply to the petition, if any, shall be filed with the court
27within 60 days of the date on which the prosecuting agency was
28served with the petition, unless a continuance is granted for good
29cause.
30(E) If the court finds by a preponderance of the evidence that
31begin delete the statements in the petition are true,end deletebegin insert end insertbegin insertone
or more of the statements
32specified in clauses (i) to (iv), inclusive, of subparagraph (B) is
33true,end insert the court shallbegin delete hold a hearing to consider whether toend delete recall
34the sentence and commitment previously ordered andbegin insert hold a
35hearingend insert to resentence the defendant in the same manner as if the
36defendant had not previously been sentenced, provided that the
37new sentence, if any, is not greater than the initial sentence.
38Victims, or victim family members if the victim is deceased, shall
39retain the rights to participate in the hearing.
P16 1(F) The factors that the court may consider when determining
2whether tobegin delete recall andend delete
resentencebegin insert the defendant to a term of
3imprisonment with the possibility of paroleend insert include, but are not
4limited to, the following:
5(i) The defendant was convicted pursuant to felony murder or
6aiding and abetting murder provisions of law.
7(ii) The defendant does not have juvenile felony adjudications
8for assault or other felony crimes with a significant potential for
9personal harm to victims prior to the offense for which the sentence
10is being considered for recall.
11(iii) The defendant committed the offense with at least one adult
12codefendant.
13(iv) Prior to the offense for which the sentence is being
14considered for recall, the
defendant had insufficient adult support
15or supervision and had suffered from psychological or physical
16trauma, or significant stress.
17(v) The defendant suffers from cognitive limitations due to
18mental illness, developmental disabilities, or other factors that did
19not constitute a defense, but influenced the defendant’s
20involvement in the offense.
21(vi) The defendant has performed acts that tend to indicate
22rehabilitation or the potential for rehabilitation, including, but not
23limited to, availing himself or herself of rehabilitative, educational,
24or vocational programs, if those programs have been available at
25his or her classification level and facility, using self-study for
26self-improvement, or showing evidence of remorse.
27(vii) The defendant has maintained family ties or connections
28with others through letter
writing, calls, or visits, or has eliminated
29contact with individuals outside of prison who are currently
30involved with crime.
31(viii) The defendant has had no disciplinary actions for violent
32activities in the last five years in which the defendant was
33determined to be the aggressor.
34(G) The court shall have the discretionbegin delete to recall the sentence to resentence the
35and commitment previously ordered andend delete
36defendant in the same manner as if the defendant had not
37previously been sentenced, provided that the new sentence, if any,
38is not greater than the initial sentence. The discretion of the court
39shall be exercised in consideration of the criteria in subparagraph
40begin delete (B).end deletebegin insert
(F).end insert Victims, or victim family members if the victim is
P17 1deceased, shall be notified of the resentencing hearing and shall
2retain their rights to participate in the hearing.
3(H) If the sentence is notbegin delete recalled,end deletebegin insert recalled or the defendant is
4resentenced to imprisonment for life without the possibility of
5parole,end insert the defendant may submit another petition for recall and
6resentencing to the sentencing court when the defendant has been
7committed to the custody of the department for at least 20 years.
8If recall and resentencing is not granted under that petition, the
9defendant may file another petition after havingbegin delete servedend deletebegin insert
been
10committed to the custody of the department forend insert 24 years. The final
11petition may be submitted, and the response to that petition shall
12be determined, during the 25th year of the defendant’sbegin delete sentence.end delete
13begin insert
commitment to the department.end insert
14(I) In addition to the criteria in subparagraph (F), the court may
15consider any other criteria that the court deems relevant to its
16decision, so long as the court identifies them on the record,
17provides a statement of reasons for adopting them, and states why
18the defendant does or does not satisfy the criteria.
19(J) This subdivision shall have retroactive application.
20(e) (1) Notwithstanding any other law and consistent with
21paragraph (1) of subdivision (a), if the secretary or the Board of
22Parole Hearings or both determine that a prisoner satisfies the
23criteria set forth in paragraph (2), the secretary or the board may
24recommend to the court that the prisoner’s sentence be recalled.
25(2) The court shall have the discretion to resentence or recall if
26the court finds that the facts described in subparagraphs (A) and
27(B) or subparagraphs (B) and (C) exist:
28(A) The prisoner is terminally ill with an incurable condition
29caused by an illness or disease that would produce death within
30six months, as determined by a physician employed by the
31department.
32(B) The conditions under which the prisoner would be released
33or receive treatment do not pose a threat to public safety.
34(C) The prisoner is permanently medically incapacitated with
35a medical condition that renders him or her permanently unable
36to perform activities of basic daily living, and results in the prisoner
37requiring 24-hour total care, including, but not limited to, coma,
38persistent
vegetative state, brain death, ventilator-dependency, loss
39of control of muscular or neurological function, and that
40incapacitation did not exist at the time of the original sentencing.
P18 1The Board of Parole Hearings shall make findings pursuant to
2this subdivision before making a recommendation for resentence
3or recall to the court. This subdivision does not apply to a prisoner
4sentenced to death or a term of life without the possibility of parole.
5(3) Within 10 days of receipt of a positive recommendation by
6the secretary or the board, the court shall hold a hearing to consider
7whether the prisoner’s sentence should be recalled.
8(4) Any physician employed by the department who determines
9that a prisoner has six months or less to live shall notify the chief
10medical officer of the prognosis. If the chief medical officer
11concurs with the
prognosis, he or she shall notify the warden.
12Within 48 hours of receiving notification, the warden or the
13warden’s representative shall notify the prisoner of the recall and
14resentencing procedures, and shall arrange for the prisoner to
15designate a family member or other outside agent to be notified
16as to the prisoner’s medical condition and prognosis, and as to the
17recall and resentencing procedures. If the inmate is deemed
18mentally unfit, the warden or the warden’s representative shall
19contact the inmate’s emergency contact and provide the information
20described in paragraph (2).
21(5) The warden or the warden’s representative shall provide the
22prisoner and his or her family member, agent, or emergency
23contact, as described in paragraph (4), updated information
24throughout the recall and resentencing process with regard to the
25prisoner’s medical condition and the status of the prisoner’s recall
26and resentencing proceedings.
27(6) Notwithstanding any other provisions of this section, the
28prisoner or his or her family member or designee may
29independently request consideration for recall and resentencing
30by contacting the chief medical officer at the prison or the
31secretary. Upon receipt of the request, the chief medical officer
32and the warden or the warden’s representative shall follow the
33procedures described in paragraph (4). If the secretary determines
34that the prisoner satisfies the criteria set forth in paragraph (2), the
35secretary or board may recommend to the court that the prisoner’s
36sentence be recalled. The secretary shall submit a recommendation
37for release within 30 days in the case of inmates sentenced to
38determinate terms and, in the case of inmates sentenced to
39indeterminate terms, the secretary shall make a recommendation
40to the Board of Parole Hearings with respect to the inmates who
P19 1have applied under this section. The board shall consider this
2
information and make an independent judgment pursuant to
3paragraph (2) and make findings related thereto before rejecting
4the request or making a recommendation to the court. This action
5shall be taken at the next lawfully noticed board meeting.
6(7) Any recommendation for recall submitted to the court by
7the secretary or the Board of Parole Hearings shall include one or
8more medical evaluations, a postrelease plan, and findings pursuant
9to paragraph (2).
10(8) If possible, the matter shall be heard before the same judge
11of the court who sentenced the prisoner.
12(9) If the court grants the recall and resentencing application,
13the prisoner shall be released by the department within 48 hours
14of receipt of the court’s order, unless a longer time period is agreed
15to by the inmate. At the time of release, the warden or the
warden’s
16representative shall ensure that the prisoner has each of the
17following in his or her possession: a discharge medical summary,
18full medical records, state identification, parole or postrelease
19community supervision medications, and all property belonging
20to the prisoner. After discharge, any additional records shall be
21sent to the prisoner’s forwarding address.
22(10) The secretary shall issue a directive to medical and
23correctional staff employed by the department that details the
24guidelines and procedures for initiating a recall and resentencing
25procedure. The directive shall clearly state that any prisoner who
26is given a prognosis of six months or less to live is eligible for
27recall and resentencing consideration, and that recall and
28resentencing procedures shall be initiated upon that prognosis.
29(11) The provisions of this subdivision shall be available to an
30inmate who
is sentenced to a county jail pursuant to subdivision
31(h). For purposes of those inmates, “secretary” or “warden” shall
32mean the county correctional administrator and “chief medical
33officer” shall mean a physician designated by the county
34correctional administrator for this purpose.
35(f) Notwithstanding any other provision of this section, for
36purposes of paragraph (3) of subdivision (h), any allegation that
37a defendant is eligible for state prison due to a prior or current
38conviction, sentence enhancement, or because he or she is required
39to register as a sex offender shall not be subject to dismissal
40pursuant to Section 1385.
P20 1(g) A sentence to state prison for a determinate term for which
2only one term is specified, is a sentence to state prison under this
3section.
4(h) (1) Except as provided in
paragraph (3), a felony punishable
5pursuant to this subdivision where the term is not specified in the
6underlying offense shall be punishable by a term of imprisonment
7in a county jail for 16 months, or two or three years.
8(2) Except as provided in paragraph (3), a felony punishable
9pursuant to this subdivision shall be punishable by imprisonment
10in a county jail for the term described in the underlying offense.
11(3) Notwithstanding paragraphs (1) and (2), where the defendant
12(A) has a prior or current felony conviction for a serious felony
13described in subdivision (c) of Section 1192.7 or a prior or current
14conviction for a violent felony described in subdivision (c) of
15Section 667.5, (B) has a prior felony conviction in another
16jurisdiction for an offense that has all the elements of a serious
17felony described in subdivision (c) of Section 1192.7 or a violent
18felony described in
subdivision (c) of Section 667.5, (C) is required
19to register as a sex offender pursuant to Chapter 5.5 (commencing
20with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
21and as part of the sentence an enhancement pursuant to Section
22186.11 is imposed, an executed sentence for a felony punishable
23pursuant to this subdivision shall be served in state prison.
24(4) Nothing in this subdivision shall be construed to prevent
25other dispositions authorized by law, including pretrial diversion,
26deferred entry of judgment, or an order granting probation pursuant
27to Section 1203.1.
28(5) (A) Unless the court finds, in the interest of justice, that it
29is not appropriate in a particular case, the court, when imposing a
30sentence pursuant to paragraph (1) or (2), shall suspend execution
31of a concluding portion of the term for a period selected at the
32court’s
discretion.
33(B) The portion of a defendant’s sentenced term that is
34suspended pursuant to this paragraph shall be known as mandatory
35supervision, and, unless otherwise ordered by the court, shall
36commence upon release from physical custody or an alternative
37custody program, whichever is later. During the period of
38mandatory supervision, the defendant shall be supervised by the
39county probation officer in accordance with the terms, conditions,
40and procedures generally applicable to persons placed on probation,
P21 1for the remaining unserved portion of the sentence imposed by the
2court. The period of supervision shall be mandatory, and may not
3be earlier terminated except by court order. Any proceeding to
4revoke or modify mandatory supervision under this subparagraph
5shall be conducted pursuant to either subdivisions (a) and (b) of
6Section 1203.2 or Section 1203.3. During the period when the
7defendant is under that supervision, unless in actual
custody related
8to the sentence imposed by the court, the defendant shall be entitled
9to only actual time credit against the term of imprisonment imposed
10by the court. Any time period which is suspended because a person
11has absconded shall not be credited toward the period of
12supervision.
13(6) The sentencing changes made by the act that added this
14subdivision shall be applied prospectively to any person sentenced
15on or after October 1, 2011.
16(7) The sentencing changes made to paragraph (5) by the act
17that added this paragraph shall become effective and operative on
18January 1, 2015, and shall be applied prospectively to any person
19sentenced on or after January 1, 2015.
20(i) This section shall become operative on January 1, 2017.
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